Chapter Two Flashcards
Query: where does the law come from?
The government & levels of government
Law
rules of conduct promulgated by the gov that define the types of conduct that are either prohibited or required
Types of Us Law
Constitution Statutes Case Law Administrative law Executive Order Treaty ( federal only )
Functions of Law
Protect life & property Safeguard basic human rights Social control Resolve conflicts Maintain social morality Regulate economics
Constitution functions
Set out structure and powers of government
Protect the rights of the people
Jurisprudence
a philosophical approach to the study of law
Natural Law
a legal philosophy whose proponents think there are ideal laws that can be discovered through careful thought and humanity’s inmate sense of right and wrong
Structure and powers of gov
Separation of powers
Checks & balances
Federalism
(Found in articles of the constitution)
Protection of individual rights
Individual rights found in the amendments
27 amendments
State Constitutions
States have their own constitutions
Can provide more rights
Cannot provide fewer rights
Subordinate to federal
Statutes facts
Constitutions are very general Need more concrete laws Organized into codes Criminal code, motor vehicle code Federal, state, and local codes
Legal positivism
a legal theory whose proponents believe that the validity of a law is determined by the process through which it was made rather than by the degree to which it reflects natural law principles
not related to morality
the law is what the gov says it is
Legal formalism
a legal theory that views the law as a complete and autonomous system of logically consistent principles within which judges find the correct result by simply making logical deductions
Legal realism
a legal philosophy whose proponents think that judges decide cases based on factors other than logic and preexisting rules, such as economic and sociological factors
Originalism
an approach to constitutional interpretation that narrowly interprets the text of the constitution in a manner that is consistent with what most people understood those words to mean at the time that they were written
Evolutionary approach
an approach to constitutional interpretation in which judges seek to determine the underlying purpose that the drafters had in mind at the time they wrote the law and the modern day option that best advances that purpose
Constitutional law
a body of principles and rules either explicitly stated in or inferred from the US Constitution and those of the individual states
Confederation
a form of gov in which independent units form an alliance but retain most of their power, delegating only a limited amount of power to a central authority
Case law
law made by the judicial branch
Judges write an opinion
Referred to as a case
If it is a high court - the opinion becomes law
Courts make law when they interpret a statute
Courts also make law in areas where there are no statutes
Some parts of the US law are case law only
Sovereign powers
the power of a government to do the things that are traditionally considered necessary to govern, such as making and executing laws
Common law
an area of the law that is based solely on case law or created by courts (no statutes)
Separation of powers
the division of governmental power among the legislative, executive, and judicial branches
Checks & balances
division among governmental branches so that each branch acts as a check on the power of the other two
Administrative regulations
agencies created by legislative bodies manage certain areas of law they pass rules and regulations quasi judicial have hearings and issue rulings
Power of judicial review
a court’s power to review statutes to decide if they conform to the US or state constitutions
Federalism
a system of government in which the authority to govern is split between a single, nationwide central government and several regional governments that control specific geographical areas
Bill of rights
the first ten amendments
Doctrine of incorporation
the application of the fourteenth amendment’s due process protections to incorporate the provisions of the bill of rights and make them applicable to the states
Administrative agencies
create rules and regulations
investigative powers
adjudicative powers
There are also state administrative agencies
State action requirement
a defendant cannot be charged with violating a constitutional right unless acting as an agent of a governmental entity
Statute
a law enacted by a state legislature or by congress
Treaty
Signed by president
Advice and consent of senate
binds us all
only federal level
Ordinance
a law enacted by a local government; a subcategory of statutory law
Administrative law
rules and regulations created by administrative agencies
Regulation
a law promulgated by an administrative agency
Enabling act
a statute establishing the rules for agencies
Fourth branch of gov
administrative agencies
Hierarchy of Law
Constitution = supreme law of the land
look for a statute ( if none must look for case law )
Ambiguous statute - case law to interpret
Executive order
an official policy directive issued by the president, or by the governor of a state, which directs government employees as to how they should implement the law
Stare decisis
the doctrine stating that normally once a court has decided one way on a particular issue, it and other courts in the same jurisdiction will decide the same way on that issue in future cases given similar facts, unless they can be convinced of the need for change
Codification of the common law
the process of legislative enactment of areas of the law previously governed solely by the common law
Derogation of the common law
used to describe legislation that changes the common law
Equity
fairness, a court’s power to do justice
Equity powers allow to judges to take action when the law would otherwise limit their decisions to monetary awards
Injunction
a court order requiring a party to perform a specific act or to cease doing a specific act
Specific performance
a requirement that a party fulfill his or her contractual obligations
Theories on jurisprudence
Legal realism Legal positivism Legal formalism Orginalism Evolutionary
Formalist
follow stare decisis
If a congress passes a statute
it means that the majority of both the house and the senate believed it was not in conflict with the constitution
jurisdiction
the power to make decisions and judgement
Agencies have
regulations
What is an example of an agency
IRS
Statutory
required, permitted, or enacted by statue
code
is all of the statutes of a government organized by subject matter
why do constitutions and statutes frequently include ambiguous languages?
so they can change the writing easily as time goes on
why are agencies referred to as the fourth branch
they have a lot of authority and power
enacted law
is the body of a law adopted by the people or legislative bodies
Includes: regulations, statutes, & constitutions
Statutory law vs. Administrative law
Statutory law is created by elective legislative bodies gov levels
Administrative law are regulations passed by agencies
what is common law based on?
stare decisis
